M\/s. Deccan Park Resorts Versus Commissioner of GST & Central Excise, Coimbatore
Service Tax
2018 (6) TMI 1084 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 20-6-2018
Appeal No. ST\/42346\/2017 – Final Order No. 41843 \/ 2018
Service Tax
Shri P Dinesha, Member ( Judicial )
\nShri Ayyamperumal P, Advocate for the Appellant
\nSmt. P. Hemavathi, Comm'r ( AR ) for the Respondent
\nORDER
\nThis is an appeal filed by the assessee being aggrieved by the order of Commissioner of Central Excise (Appeals), Coimbatore. Reliefs sought in this appeal are (i) deletion of penalty under Section 78 to the extent sustained by the Commissioner (Appeals) and (ii) deletion of penalty imposed under Section 77(2) of the Act.
\n2. Brief facts leading to the present appeal are as under:
\n(i) The appellant is the holder of service tax registration for providing short term accommodation service. A Show Cause Notice dated 23.02.2016 was issued by the respondent on the ground that the appellant h<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ct, 1994; = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n g with interest of Rs. 90,641\/-, etc. The adjudicating authority (AA), vide order dated 18.01.2017 confirmed the demand of Service Tax, appropriated the amount paid towards duty and interest, imposed penalty of Rs. 10,000\/- under Section 77(2) of the Finance Act, 1994 and a penalty of Rs. 1,29,103\/- under Section 78 proviso (i) of the Finance Act, 1994, on the appellant. The appellant preferred an appeal against the levy on the ground that the imposition of penalty at 15% under 2nd proviso to Section 78, on the ground that the appellant had paid tax and interest much before the issuance of Show Cause Notice (SCN) with a further contention that the larger period was not invocable, since there was no suppression on the part of appellant. The Ld. Commissioner (Appeals), however, vide order dated 14.09.2017 upheld the penalty imposed under 2nd proviso to Section 78, but set aside the penalty imposed under Section 78 on the excess amount collected. Aggrieved by this part of the order of the<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n 5) S.T.R. 389 (Tri. Chennai) & (iv) Shriram Epc Ltd. Vs. Commissioner of Service Tax, Chennai 2014 (35) S.T.R. 564 (Tri.- Chennai) = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n olve demands for these but just imposes penalty for delay in payment. When provisions similar to Section 73(3) was introduced in Central Excise Act, 1944 as Section 11A(2B) in the year 2001, it was clarified that these provisions are meant for encouraging immediate realization of short payments detected by audit teams so that whoever discharges the short paid tax immediately need not get entangled in protracted litigations. Therefore, unless there is a case of active suppression, provisions of Section 73(3) should be extended. This is view of the Karnataka High Court also in the case of CCE & ST., LTU, Bangalore v. ADECCO Flexione Work Force Solutions Ltd. – 2012 (26) S.T.R. 3 (Kar.). The decision in the case of First Flight Couriers was on a different footing because the appellant therein did not pay Service Tax and also did not file return on the ground that there was a strike by the employees of that appellant. It was not a case of bona fide error or doubt regarding legal provisions<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. Deccan Park Resorts Versus Commissioner of GST & Central Excise, CoimbatoreService Tax2018 (6) TMI 1084 – CESTAT CHENNAI – TMICESTAT CHENNAI – ATDated:- 20-6-2018Appeal No. ST\/42346\/2017 – Final Order No. 41843 \/ 2018Service TaxShri P Dinesha, Member ( Judicial ) Shri Ayyamperumal P, Advocate for the Appellant Smt. P. Hemavathi, Comm'r ( AR ) … Continue reading “M\/s. Deccan Park Resorts Versus Commissioner of GST & Central Excise, Coimbatore”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-12340","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12340","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12340"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12340\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12340"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12340"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12340"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n (iii) the amount of Rs. 64,189\/- collected as Service Tax in excess on Room Rent as shown in Table I should not be demanded from them under Section 73A(3) of the Finance Act, 1994;
\n (iv) the amount of Rs. 22,419\/- collected as Service Tax on Food Bills from 01\/07\/2011 to 31\/03\/2012 as shown in Table II above, should not be demanded from them under Section 73A(3) of the Finance Act, 1994;
\n (v) Service tax amount of Rs. 8,60,864\/- paid on 31\/08\/2012 by them as shown in Table IV above should not be appropriated against the amounts demanded at (ii), (ii) & (iv) above
\n (vi) appropriate interest on the amount demanded at Sl. No. (ii) above, should not be demanded from them under Section 75 of the Finance Act, 1994;
\n (vii) appropriate interest on the amount demanded at Sl. No (iii) and (iv) above, should not be demanded from them under Section 73B of the Finance Act, 1994;
\n (viii) the amount of Rs. 90,641\/- paid as interest on 31\/08\/2012 under various Challans dated 31\/8\/2012<\/p>\n
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\n4. Per contra, the learned Department Representative (DR) supports the findings of the lower authorities.
\n5. I have considered the rival contentions and perused the materials on record and the case law relied on during the hearing. In the case of Sri Velmurugan Sago Factory Vs. Commissioner of C. Ex., Salem reported in 2017 (347) E.L.T. 185 (Tri.-Chennai), this very Bench of the Tribunal was considering an identical issue, but with regard to the demand of penalty under Section 11AC of the Central Excise Act, 1944, and after a careful analysis of Section 112B, has concluded as under:
\n “6. This being the case, it would have been most appropriate if the SCNs had not been issued in these cases. Instead, these appellants perforce have been required to come before this forum for relief. In the circumstances, while there is no two opinion that the differential <\/p>\n
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